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Grounds publishedDecided 28 Feb 2022
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Court of Appeal

Tan Seng Kee v Attorney-General and other appeals

[2022] SGCA 16Case no. Civil Appeal No 54 of 2020

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  1. Introduction

  2. [1] These appeals concern the constitutionality of s 377A of the Penal Code (Cap 224, 2008 Rev Ed) (referred to hereafter as “s 377A” and “the PC” respectively), an issue which is before this court not for the first time. The appellants contend that s 377A is unconstitutional by reason of its inconsistency with Arts 9, 12 and/or 14 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”). Although s 377A is a law that, on its face, purports to do no more than prohibit particular sexual acts, its penalty and purpose carry more profound consequences, touching upon “the most private human conduct” and often in the context of the most private relationships (see Lawrence et al v Texas 539 US 558 (2003) at 567). Yet, for a law that has come to be intensely personal to many for what it means both practically and symbolically, it has also assumed an exceedingly public dimension. What rights the appellants claim to be fundamental, others view as controversial; what is to the appellants deeply personal and even definitive of their identity, others regard as offensive. On both sides of this divide, the continued existence of s 377A in our statute books has taken on particular importance because of what it is thought to signify. (For completeness, we note that the current s 377A of the Penal Code 1871 (2020 Rev Ed) (“the Revised PC”) is in pari materia with s 377A of the PC, which was the version of the provision that was in force at the time of the appellants’ respective applications and the subject of the present constitutional challenges. Likewise, the present Arts 9, 12 and 14 of the Constitution of the Republic of Singapore 1965 (2020 Rev Ed) (“the Revised Constitution”) are in pari materia with the corresponding Articles of the Constitution that were in force at the material time. Our judgment is thus equally applicable to the current s 377A of the Revised PC and Arts 9, 12 and 14 of the Revised Constitution.)

  3. [2] Before delving into the questions that these appeals present, we first clarify the scope of these appeals, beginning with what they are not about. They are not about whether s 377A should be retained or repealed, that being a matter beyond our remit. Nor are they about the moral worth of homosexual individuals. In the words of our Prime Minister, Mr Lee Hsien Loong (“the Prime Minister”), homosexual individuals are “part of our society” and “our kith and kin” (see Singapore Parliamentary Debates, Official Report (23 October 2007) vol 83 (“the 23 October 2007 Debates”) at col 2398 (Lee Hsien Loong, Prime Minister and Minister for Finance)). They are also not about the fundamental nature of sexual orientation (whether immutable or not), which is an extra-legal question well beyond the purview of the courts.

  4. [3] What, then, are these appeals about? The deceptively easy answer – namely, whether s 377A is inconsistent with the Constitution – belies the underlying complexity of the issues that are before us. Section 377A has long been a lightning rod for polarisation, in large part because it raises a wider question, which admits of no ready answers, of how a State can best maintain harmony between different communities with deeply held, and sometimes conflicting, views on important issues of moral conscience. As the socio-political debate over s 377A continues, the balance between various interests in society grows more delicate, and the need to create space for peaceful co-existence too becomes more pressing.

  5. [4] One may well ask whether litigation is, in fact, the optimal way to resolve such differences. Politics seems the more obvious choice than litigation for debating and resolving highly contentious societal issues. At the heart of politics lies the project of democratic engagement, as politicians aim to persuade voters by appealing to hearts and minds. Litigation, on the other hand, is “not a consultative or participatory process” but “an appeal to law” (see Jonathan Sumption, Trials of the State: Law and the Decline of Politics (Profile Books Ltd, 2019) (“Trials of the State”) at p 65). The single biggest advantage of the political process – in fact, its raison d’être – is its ability to accommodate divergent interests and opinions (see likewise Trials of the State at p 65). However sub-optimally some may think politics performs that function, the courts can never discharge that function simply because it is not their constitutional role to mediate such differences in society. And this is so for good reason, because litigation is a zero-sum, adversarial process with win-lose outcomes. The political process, in contrast, seeks to mediate – it strives for compromises and consensus in which no one side has to lose all.

  6. [6] Second, even those who place a higher premium on outcomes than processes have every reason to be invested in having social controversies resolved by robust public debate rather than by litigation. One need only consider the outsized consequences of the decision of the Supreme Court of the United States in Roe v Wade 410 US 113 (1973) (“Roe v Wade”) to comprehend this point. In the 1970s, state legislatures in the United States seemed to be leaning towards the gradual liberalisation of abortion statutes. However, that process was abruptly disrupted by the Supreme Court’s decision in Roe v Wade in 1973, in which the court held that the Due Process Clause in the Fourteenth Amendment to the United States Constitution provided a “right to privacy” that protected a pregnant woman’s right to choose whether to have an abortion. It has been suggested that by short-circuiting the process of democratic, organic change, Roe v Wade “stimulated the mobilization of a right-to-life movement and an attendant reaction in Congress and state legislatures”, thereby deferring stable settlement of what has now become an intractable issue (see Ruth Bader Ginsburg, “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade” 63 N C L Rev 375 (1985) at 381). Nearly 50 years later, the ramifications of that decision continue to reverberate in the legal challenges that are still being brought against it, and in how prominently it continues to feature in the public examination of candidates for appointment to the Supreme Court.

  7. [7] Third, the courts risk a diminution in their legitimacy if they are perceived as having overstepped their boundaries. This risk may materialise if the courts wade into matters that call for resolution by discussion, consensus and debate, rather than by a judgment handed down by a court. It can only be injurious to public confidence in the courts if polycentric matters are not debated and resolved by the many but summarily adjudicated by the few. Accordingly, judicial restraint should be prioritised in the face of disagreements that stem from incommensurable conceptions of the good.

  8. [8] In the final analysis, certain issues call for continued discussion and open-ended resolutions, rather than win-lose outcomes recorded in a court judgment. Of course, some may disagree. The appellants point to the decision of the Supreme Court of India in Navtej Singh Johar & Ors v Union of India thr Secretary, Ministry of Law and Justice [2018] 10 SCC 1, which decriminalised same-sex intercourse, and contend that the time has come for us likewise to declare s 377A unconstitutional. However, one cannot look to developments abroad without first appreciating the exceptional situation in Singapore. The merits of retaining s 377A were subject to robust and lengthy debate in Parliament in 2007, culminating in a uniquely Singaporean resolution: a political compromise in which s 377A would be retained because it was thought to bear important symbolic weight for the conservative mainstream in Singapore. Exceptionally, this was on the basis that s 377A would not be proactively enforced, so as to accommodate our homosexual kith and kin. To our knowledge, no other country has struck a similar political compromise in respect of laws resembling s 377A.

  9. [9] The aforesaid political compromise was conceived with the express intention of accommodating divergent interests, avoiding polarisation and facilitating incremental change. Its purpose was to keep s 377A as a matter within the democratic space. There are consequences in removing issues of such profound public and moral significance from the realm of democratic decision. As Chief Justice John Roberts pithily put it in Obergefell v Hodges 576 US 644 (2015) at 710, “[c]losing debate tends to close minds”.

  10. [10] Importantly, the political compromise on s 377A that was forged in 2007 and that has been upheld since then has radically altered the complexion of this provision, in terms of both its constitutionality and its consequences for those whom it might affect. Any discussion on the constitutionality of s 377A therefore cannot ignore the terms, the purpose and the consequences of this political compromise.

  11. The role of the court

  12. [11] As the appeals before us raise matters of searing socio-political controversy, we think it especially important for us, first, to characterise the role of the court correctly. It is incontrovertible that the doctrine of the separation of powers is part of the basic structure of the Westminster constitutional model that Singapore adopts. Constitutions based on the Westminster model incorporate this doctrine so as to diffuse state power amongst different organs of State (see Mohammad Faizal bin Sabtu v Public Prosecutor [2012] 4 SLR 947 (“Mohammad Faizal bin Sabtu”) at [11]–[12]). It follows from this doctrine that the court must refrain from trespassing onto what is properly the territory of Parliament.

  13. [12] However, as we observed in Saravanan Chandaram v Public Prosecutor and another matter [2020] 2 SLR 95 (“Saravanan”) at [154] and Wham Kwok Han Jolovan v Public Prosecutor [2021] 1 SLR 476 (“Jolovan Wham”) at [26], that is not to say that Parliament’s actions are presumptively constitutional. The doctrine of the separation of powers is premised on the notion that the Judiciary, the Executive and the Legislature are co-equal branches. It follows that the court will not defer to the other branches where the constitutionality or legality of a measure or statutory provision is challenged in legal proceedings. Indeed, any such deference would be contrary to the doctrine of the separation of powers and would portend the institutional irrelevance of the court. As each organ of State has its own role and space (see Jolovan Wham at [27]), the focus should be on whether a particular issue falls within the institutional sphere of a particular organ of State and whether any action taken within that sphere is constitutionally permissible. It goes without saying that in deciding whether a law or measure is constitutional, the court is concerned only with legal matters, and extra-legal considerations are beyond its purview.

  14. [13] Counsel for the Attorney-General (“the AG”), Ms Kristy Tan SC (“Ms Tan”), contends that whether s 377A should be repealed is a matter that falls within Parliament’s constitutional role. She acknowledges, however, that while the court cannot evaluate the policy merits of s 377A, it may determine the constitutionality of that provision. We agree. In our judgment, the legality of the political compromise that was struck in 2007 as regards s 377A similarly falls within the court’s institutional sphere. The fact that an impugned action is of a political nature or has socio-political significance does not, in and of itself, mean that the legality or constitutionality of that action cannot be assessed by the court – in fact, quite the contrary. The inherently political nature of the compromise reached on s 377A does not preclude the existence or application of legal standards against which its legality or constitutionality can be judged.

  15. [14] That said, it is equally important to note that the law is not and cannot be the continuation of politics by other means. The court is not a front-runner for social change or an architect of social policy, and the consequences may well be dire if it were otherwise (see [6] above). It hence bears reiterating that any judicial ruling in respect of s 377A ought to concern only its legality or constitutionality and cannot extend to the policy merits or socio-political desirability of retaining or repealing s 377A. After all, the role of the court is not to design policy but simply to “say what the law is” (see Marbury v Madison 5 US 137 (1803) at 177).

  16. [15] In summary, the doctrine of the separation of powers calls for each branch to respect the institutional space and legitimate prerogatives of the others. While this means that each branch should not intrude upon the institutional space that properly belongs to the other branches, it also means that each branch must be allowed to exercise fully and fairly the powers it has been allocated (see the Bernstein Lecture at 303). In that light, we turn to the facts of the present appeals.

  17. The background facts

  18. [16] We begin by setting out the relevant background to these appeals. Section 377A was enacted by the Legislative Council of the Straits Settlements (“the Legislative Council”) in 1938 by way of s 3 of the Penal Code (Amendment) Ordinance 1938 (SS Ord No 12 of 1938) (“the 1938 Penal Code (Amendment) Ordinance”), and provides as follows:

  19. [17] On 22 October 2007, a petition to repeal s 377A was presented to Parliament. Although no vote was taken on that petition, s 377A was debated extensively in Parliament during the second reading of the Penal Code (Amendment) Bill (Bill No 38/2007) (“the 2007 Penal Code (Amendment) Bill”): see Singapore Parliamentary Debates, Official Report (22 and 23 October 2007) vol 83. For ease of reference, we hereafter denote these debates collectively as “the s 377A Debates”. Of especial note is that while s 377A was retained, the Prime Minister made clear that this was on the terms that it would not be proactively enforced (see the 23 October 2007 Debates at col 2402). In his speech during the s 377A Debates, the Prime Minister emphasised the need to forge a consensus gradually and stated that the Government had decided to “keep the status quo on section 377A” (see the 23 October 2007 Debates at col 2405).

  20. [18] The issue of the constitutionality of s 377A first came before our courts in Tan Eng Hong v Attorney-General [2013] 4 SLR 1059, in which the High Court held that s 377A was constitutional and did not offend Arts 9 and 12 of the Constitution. That decision was upheld on appeal in Lim Meng Suang and another v Attorney-General and another appeal and another matter [2015] 1 SLR 26 (“Lim Meng Suang (CA)”). In the intervening years since our decision in Lim Meng Suang (CA), s 377A has remained a controversial and socially divisive issue, with calls both for and against its repeal intensifying in recent years.

  21. [19] Amidst the ongoing discussion on the retention or repeal of s 377A, Attorney-General Mr Lucien Wong SC (“AG Wong”), in his capacity as the Public Prosecutor (“the PP”), clarified in 2018 the prosecutorial policy in respect of offences falling under that provision. In a press release dated 2 October 2018 (“the 2018 AGC Press Release”), AG Wong acknowledged the Government’s position that “the Police will not proactively enforce [s 377A], for instance by conducting enforcement raids” (see para 3 of the 2018 AGC Press Release). He clarified, however, that the police would investigate reported offences under s 377A if the surrounding circumstances so warranted (for instance, if minors were involved). He concluded by stating (at para 6 of the 2018 AGC Press Release):

  22. AG Wong reiterated this position in a letter published under his name in The Straits Times on 6 October 2018 (“the 2018 Straits Times article”). These statements contemplate the non-prosecution of a subset of acts that may be caught under s 377A, namely, sexual acts between two consenting adult men in private (“the Subset”).

  23. The proceedings below

  24. [20] Against those background facts, we provide an overview of the proceedings below.

  25. [21] The three appellants are homosexual men. The appellant in CA/CA 54/2020 (“CA 54”), Dr Tan Seng Kee (“Dr Tan”), is a medical doctor and LGBT (lesbian, gay, bisexual and transgender) activist. The appellant in CA/CA 55/2020 (“CA 55”), Mr Ong Ming Johnson (“Mr Ong”), is an international disc jockey, while the appellant in CA/CA 71/2020 (“CA 71”), Mr Choong Chee Hong (“Mr Choong”), is a former executive director of Oogachaga Counselling and Support.

  26. [22] The appellants each filed an application challenging the constitutionality of s 377A on the basis that it violates Arts 9, 12 and/or 14 of the Constitution (referred to hereafter as “Art 9”, “Art 12” and “Art 14” respectively). They sought declaratory relief and/or the voiding of s 377A to the extent of any such inconsistency with the Constitution.

  27. The appellants’ arguments

  28. [24] As to the alleged unconstitutionality of s 377A, Mr Singh submitted that the provision fails the “reasonable classification” test and therefore violates Art 12 because there is no rational relation between its legislative object (of curbing male prostitution) and its differentia (which was asserted to be gay and bisexual men). He also proposed that the court adopt a proportionality-based test in place of the “reasonable classification” test for the purposes of assessing the constitutionality of a statutory provision under Art 12. Additionally, he argued that s 377A is inconsistent with Art 14 because it curtails the expression of love and closeness through consensual acts of sexual intimacy between men, and therefore unlawfully derogates from the constitutional right to freedom of expression.

  29. [25] Counsel for Mr Ong, Mr Eugene Singarajah Thuraisingam (“Mr Thuraisingam”), primarily argued that s 377A is inconsistent with Art 9(1) because it is absurd and arbitrary in criminalising individuals by reason of their sexual identity. In this regard, he sought to establish the immutability of sexual orientation by adducing affidavit evidence from various experts. According to Mr Thuraisingam, the expert evidence discloses a scientific consensus that sexual orientation is immutable and is not caused or influenced by socio-environmental factors. He further contended that s 377A violates Art 12 not only because there is no rational relation between its differentia (namely, male-male sex acts) and its legislative object (namely, the expression of disapprobation of either gross indecency or homosexuality in general), but also because it lacks an intelligible differentia to begin with.

  30. [26] Counsel for Dr Tan, Mr Ravi s/o Madasamy (“Mr Ravi”), broadly focused on the absurdity and arbitrariness of retaining s 377A in the light of the Government’s avowed position that s 377A would not be proactively enforced where conduct falling within the Subset (as defined at [19] above) is concerned. He also aligned himself with Mr Singh’s and Mr Thuraisingam’s submissions that s 377A falls afoul of Arts 9, 12 and 14.

  31. The High Court’s decision

  32. [27] The High Court judge (“the Judge”) found that s 377A did not violate Arts 9, 12 and/or 14. He therefore dismissed all three applications brought by the appellants: see Ong Ming Johnson v Attorney-General and other matters [2020] SGHC 63 (“the Judgment”).

  33. [28] The Judge first sought to interpret s 377A by applying the three-step framework for statutory interpretation set out in Tan Cheng Bock v Attorney-General [2017] 2 SLR 850 (“Tan Cheng Bock”). Under the first step of that framework (“the Tan Cheng Bock framework”), the Judge found that the ordinary meaning of the words “gross indecency with another male person” in s 377A was sufficiently wide to cover both penetrative and non-penetrative sexual activity between men. He also found that the language of s 377A did not connote any limitation to only activities involving male prostitution (see the Judgment at [94]).

  34. [29] Under the second and third steps of the Tan Cheng Bock framework, the Judge examined the extraneous material adduced by the appellants. The extraneous material comprised legislative material relating to the enactment of s 377A in 1938 that had been considered by this court in Lim Meng Suang (CA), as well as new extraneous material that was before the court for the first time. The Judge found that the new extraneous material was, strictly speaking, irrelevant for the purposes of statutory interpretation under the Tan Cheng Bock framework because it failed to meet the requisite standard of relevance and reliability (see the Judgment at [52]). Nonetheless, out of an abundance of caution, he proceeded to consider all the extraneous material that was before him.

  35. [30] The Judge found that while the problem of male prostitution had caused the British colonial administration much consternation, there was no mention of male prostitution in any of the relevant legislative material. It therefore could not be inferred that male prostitution was the only mischief that had necessitated the introduction of s 377A. Further, the fact that a more precise legislative solution was not crafted to specifically tackle the problem of male prostitution, even though this could easily have been done, suggested that s 377A was intended to be of broader application (see the Judgment at [112] and [137]). The new extraneous material did not change his view (see the Judgment at [113], [118], [145] and [146]).

  36. [31] As for the argument that s 377A was only intended to criminalise non-penetrative sex acts between men, the Judge acknowledged that prior to the enactment of s 377A, penetrative sex between men, whether in public or in private, was already criminalised under s 377 (see the Judgment at [107]). Moreover, s 23 of the Minor Offences Ordinance 1906 (SS Ord No 13 of 1906) (referred to hereafter as “s 23” and “the MOO” respectively) criminalised, among other things, indecent behaviour in public (see the Judgment at [103]). The gap in the criminal legislation prior to the introduction of s 377A in 1938 was hence that non-penetrative sexual activity between men in private was not criminalised under either s 377 or s 23 (see the Judgment at [108]).

  37. [32] However, the relevant legislative material showed that s 377A was not intended to deal only with non-penetrative sexual activity between men in private. Part of the legislative material referred only to the need to supplement s 377, whereas another part spoke only of the need to supplement s 23. The legislative material, read holistically, militated in favour of the conclusion that s 377A broadened the scope hitherto covered by s 377 by covering not only penetrative sex, but also other (less serious) acts of “gross indecency” between men (see the Judgment at [131]–[133]). The Judge was of the view that the new extraneous material did not undermine his conclusion, which was the very conclusion that we had arrived at in Lim Meng Suang (CA) at [134] (see the Judgment at [134] and [144]). This interpretation of s 377A (as covering both penetrative and non-penetrative sex acts) also accorded with the ordinary meaning of “gross indecency” as ascertained by the Judge under the first step of the Tan Cheng Bock framework (see the Judgment at [109]–[110]). As for Mr Singh’s argument that s 377A did not cover penetrative sex acts because s 377 already covered such conduct, the Judge observed that the PC contained numerous examples of overlapping offences (see the Judgment at [130]). He thus held that s 377A overlapped with both s 23 and s 377, and that there was no legislative intent to exclude any such overlap (see the Judgment at [146(c)]).

  38. [33] In rejecting the argument that s 377A was intended to deal only with non-penetrative sexual activity between men in private, the Judge also noted that s 377A was based on s 11 of the English Criminal Law Amendment Act 1885 (c 69) (referred to hereafter as “s 11 (UK)” and “the 1885 UK Act” respectively), which was invoked to prosecute offences involving sodomy (see the Judgment at [44], [49] and [97]). He observed that the use of s 11 (UK) was not confined to cases involving male prostitutes nor to cases involving non-penetrative sex acts (see the Judgment at [123]). The Judge ultimately concluded that the legislative purpose of s 377A was “to safeguard public morals generally” (see the Judgment at [146(d)]). Section 377A furthered this legislative purpose by demonstrating society’s moral disapproval of male homosexual sex acts and by enabling the enforcement and prosecution of all forms of gross indecency between men (see the Judgment at [146(d)], [181], [189], [191] and [298]).

  39. [34] The Judge noted that, as a matter of stare decisis, he remained bound by this court’s holdings in Lim Meng Suang (CA) as to the purpose and scope of s 377A. However, even if he were not so bound, and even after taking into account the new extraneous material put forth by the appellants, he found no reason to depart from those holdings (see the Judgment at [143], [144], [305] and [306]).

  40. [35] Turning to the constitutional challenge to s 377A under Art 12, the Judge held that s 377A had an intelligible differentia under the “reasonable classification” test as it targeted homosexual sex acts between men. This differentia could not be said to be unintelligible because distinctions were drawn between men and women in other areas of Singapore law (see the Judgment at [171]–[174] and [178]). There was also a rational relation between this differentia and the object sought to be achieved by s 377A, which was the safeguarding of public morals generally (see the Judgment at [146(d)], [179]–[181] and [189]).

  41. [36] The Judge rejected the appellants’ arguments that s 377A was both over-inclusive and under-inclusive (see the Judgment at [183]–[194]). He held that there was a complete coincidence between the differentia in s 377A (namely, acts of gross indecency between men) and the legislative object that s 377A sought to achieve (namely, “the criminalisation of male homosexual conduct to safeguard public morals generally and reflect societal morality”: see the Judgment at [189]). Consequently, he held that there was a rational relation between the differentia in and the object of s 377A and that s 377A satisfied the “reasonable classification” test (see the Judgment at [194]). The Judge was of the view that, in any event, he was bound by this court’s finding in Lim Meng Suang (CA) that s 377A is not contrary to Art 12 (see the Judgment at [164]).

  42. [37] The Judge also rejected the suggestion that the court ought to adopt a higher standard of scrutiny in the form of a proportionality-based test when assessing the constitutionality of a statutory provision under Art 12. His primary reason was that such a test would necessarily involve reviewing the legitimacy of the object of the statutory provision in question, which would entail the risk of the court acting like a “mini-legislature” (see the Judgment at [216]).

  43. [38] In respect of the constitutional challenge to s 377A under Art 14(1)(a), the Judge applied the Tan Cheng Bock framework to interpret the meaning and scope of the phrase “freedom of … expression” as used in that Article. He acknowledged that the plain meaning of the term “expression” did not rule out the possibility of sexual intercourse being a form of expression (see the Judgment at [244]). However, he noted that the marginal note to Art 14, which formed part of the relevant context in interpreting Art 14(1)(a), made no mention of freedom of expression as a free-standing right (see the Judgment at [245]–[246]). This suggested to him that the right to freedom of expression was “something relating to or falling within the right to freedom of speech ie the verbal communication of an idea, opinion or belief” (see the Judgment at [246]). Applying the ejusdem generis principle of statutory interpretation, the Judge found that the ordinary meaning of the term “expression”, when read together with the term “speech”, “necessarily point[ed] towards some form of verbal communication” (see the Judgment at [247] and [249]). He therefore held that the right to freedom of expression could not be divorced from the right to freedom of speech (see the Judgment at [249]).

  44. [39] Although the appellants contended that such a reading would render the term “expression” in Art 14(1)(a) otiose, the Judge considered that there ought to be some allowance for surplusage or redundancy, given the “long history and borrowed phraseology” of Art 14(1)(a) (see the Judgment at [252]–[255]). His view was reinforced by the Report of the Constitutional Commission (27 August 1966) (Chairman: Wee Chong Jin CJ) (“the 1966 Constitutional Commission Report”), which omitted any mention of an independent, free-standing right to freedom of expression when considering the predecessor to Art 14(1)(a) (see the Judgment at [258]–[259]).

  45. [40] As for the appellants’ argument that sexual acts between consenting adult men conveyed meaning (such as love and affection) and were thus a protected form of expression, the Judge accepted that acts of physical intimacy might, in certain circumstances, serve as the means through which meaning was conveyed. He emphasised, however, that the right to freedom of expression under Art 14(1)(a) had to be understood in its proper context – namely, that it was encompassed within the right to freedom of speech. He also noted that an expansive reading of the right to freedom of expression could lead to absurd outcomes (see the Judgment at [261]–[263]).

  46. [41] Having found that the term “expression” was encompassed within the term “speech”, which he took to mean “the verbal communication of an idea, opinion or belief”, the Judge held that Art 14(1)(a) did not afford a constitutional right to engage in male homosexual sex acts as a form of “expression” (see the Judgment at [246] and [265]).

  47. [42] In respect of the constitutional challenge to s 377A under Art 9, the Judge was unconvinced that the scientific evidence before him pointed to any definitive conclusion on the immutability of sexual orientation. Instead, he found that the changeability and causes of sexual orientation remained highly controversial and were extra-legal arguments that did not come within the proper purview of the courts (see the Judgment at [273], [277] and [279]).

  48. [43] The Judge also rejected Mr Thuraisingam’s contention that s 377A criminalised a person on the basis of his sexual identity. Apart from the fact that there was no conclusive scientific evidence to show that homosexuality was immutable and/or solely caused by biological factors, an individual’s sexual identity was simply not an element of the offence under s 377A. Sexual orientation in and of itself was completely irrelevant under s 377A: a heterosexual man could equally be prosecuted under that provision (see the Judgment at [281]–[282]). The Judge was further of the view that Mr Thuraisingam were effectively advocating the recognition of an unqualified constitutional right to “personal liberty” on the basis of a person’s homosexual identity. He rejected that submission because unenumerated rights could not be specifically protected, and because many constitutional rights were qualified and not absolute (see the Judgment at [283]).

  49. [44] The Judge went on to consider the appellants’ arguments pertaining to the AG’s stated policy that s 377A would not be proactively enforced. In his view, the appellants’ real objection concerned that policy of non-enforcement rather than the inherent constitutionality of s 377A. These were, according to the Judge, separate and distinct issues: the manner in which a provision was enforced, even if arbitrary, could not, without more, result in the provision itself being rendered unconstitutional (see the Judgment at [287]). In any case, the AG had provided some guidance (through the 2018 AGC Press Release) on when the police would investigate possible offences under s 377A (see the Judgment at [288]). The Judge further held that the non-enforcement of s 377A was not incompatible with ss 424 and 17 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”). He reasoned that given the AG’s avowed stance that it would not ordinarily be in the public interest to prosecute sexual activity between consenting adult men in private, there was no real risk of anyone being held liable for failing to report such activity, even though s 424 of the CPC imposed an obligation to do so (see the Judgment at [285] and [291]). In the same vein, even though the police were required under s 17(1) of the CPC to investigate suspected offences under s 377A, they retained the discretion under s 17(2) of the CPC to not do so (see the Judgment at [292]).

  50. [45] For the foregoing reasons, the Judge held that s 377A was constitutional and dismissed all three applications brought by the appellants.

  51. The parties’ cases on appeal

  52. The appellant’s case in CA 71

  53. [46] The heart of Mr Singh’s case on appeal lies in the proper interpretation of s 377A. Mr Singh maintains that s 377A was only intended to cover non-penetrative sex acts between men. According to him, the extraneous material as well as the architecture of and the language used in the PC show that the offences under ss 377A and 377 were intended to be strictly non-overlapping. He also reiterates that the true mischief targeted by s 377A was male prostitution.

  54. [47] Additionally, Mr Singh submits that s 377A violates Art 12 on several levels:

  55. (a) First, both men and women can commit acts of gross indecency. However, s 377A does not criminalise female-female acts of gross indecency, whether in private or in public, or, for that matter, male-female acts of gross indecency. Section 377A is thus severely under-inclusive and falls afoul of Art 12.

  56. (b) Second, s 377A is also over-inclusive because it criminalises private sex acts in the interest of safeguarding public morality. The AG’s and the Government’s general stance of not enforcing s 377A in respect of private sex acts shows that the criminalisation of such acts does not further the object of safeguarding public morality generally.

  57. (c) Third, the Judge erred in finding that there was a complete coincidence between the differentia in and the legislative object of s 377A. According to Mr Singh, the Judge’s finding is premised on characterising the legislative object of s 377A in a manner which includes the very differentia of that provision. He contends that framing the legislative object of s 377A in such a circular manner effectively denudes Art 12 of any real force.

  58. At the hearing before us, Mr Singh and his co-counsel, Mr Jordan Tan (“Mr Tan”), focused on the arguments summarised at [46], [47(a)] and [47(c)] above.

  59. [48] It will be recalled that, in the proceedings below, Mr Singh propounded the adoption of a proportionality-based test in place of the “reasonable classification” test for the purposes of determining whether a statutory provision violates Art 12 (see [24] above). On appeal, he initially advocated the adoption of an “intermediate scrutiny” test to evaluate whether a statutory provision that discriminates on the basis of sex (such as s 377A) passes muster under Art 12. This test requires that the impugned sex-based differentia serve an “important state interest” [emphasis in original omitted] and be “substantially related” [emphasis in original omitted] to serving that interest. However, Mr Singh subsequently revised his position. In an aide memoire tendered to us at the hearing, he urged us to adopt a test of “substantial connection” instead. Under this test, where a statutory provision discriminates on the basis of sex, there must be a “substantial connection”, and not merely a “rational relation”, between that differentia and the legislative purpose of the provision. The “intermediate scrutiny” test and the “substantial connection” test are similar, save that the latter does not require that the impugned sex-based differentia serve an important state interest.

  60. [49] Mr Singh adds that the Judge erred in interpreting the term “expression” in Art 14(1)(a) restrictively to mean “some form of verbal expression” [emphasis in original omitted]. He avers that acts of sexual intimacy clearly fall within the ambit of Art 14(1)(a) as they are “a fundamentally important form of personal expression”. Accordingly, he submits that s 377A impermissibly derogates from the constitutional right to freedom of expression under Art 14(1)(a).

  61. [50] In the final analysis, Mr Singh submits that s 377A must either be construed in a manner consistent with the Constitution or be declared unconstitutional and struck down.

  62. The appellant’s case in CA 55

  63. [51] Mr Thuraisingam submits that the expert evidence adduced in the proceedings below shows, on a balance of probabilities, that sexual orientation cannot be wilfully changed and is not influenced by socio-environmental factors. In view of this, he argues that s 377A exposes a class of persons to the risk of incarceration on account of their sexual identity while failing to advance any compelling object. He therefore contends that s 377A is “absurd” (per Yong Vui Kong v Public Prosecutor and another matter [2010] 3 SLR 489 (“Yong Vui Kong (MDP)”) at [16]) and, consequently, not “law” for the purposes of Art 9(1).

  64. [52] According to Mr Thuraisingam, s 377A violates Art 9(1) for two further reasons:

  65. (a) First, s 377A is “arbitrary” (per Yong Vui Kong (MDP) at [16]) because there is no evidence of any rational, logical or coherent differentia between male and female homosexual intimacy. Mr Thuraisingam also adopts Mr Singh’s arguments that: (i) there is no rational relation between the differentia in and the object of s 377A; and (ii) the Judge erred in framing the object of s 377A as “the safeguarding of public morals through the criminalising of [male homosexual] conduct” [emphasis added] (see the Judgment at [191]).

  66. (b) Second, s 377A is contrary to the rule of law. The 2018 AGC Press Release states that the police will not “proactively enforce” s 377A and that it will not ordinarily be in the public interest to prosecute consensual sexual conduct between adult men in private. It also states, however, that the police may investigate complaints of offences under s 377A. Hence, a man who engages in conduct amounting to an offence under s 377A cannot reasonably foresee whether he will be investigated and/or prosecuted for such conduct, which is inconsistent with the rule of law.

  67. [53] For the foregoing reasons, Mr Thuraisingam’s position is that s 377A cannot be interpreted consistently with the Constitution, nor can the purportedly unconstitutional portions of s 377A be severed to “save” the remaining portions. Consequently, s 377A must be voided in its entirety.

  68. The appellant’s case in CA 54

  69. [54] Mr Ravi’s position is that s 377A should be declared void. As a general observation, Mr Ravi places greater weight on the legislative intention underpinning the retention of s 377A in 2007 than on the legislative purpose behind its enactment in 1938. While he acknowledged that the relevant parliamentary intention is usually to be discerned as at the time the statutory provision in question was enacted, he submitted during the hearing that the legislative purpose of a statutory provision could change over time and that any new legislative purpose could be taken into account when interpreting that provision.

  70. [55] Although Mr Ravi argued in his written submissions that s 377A violates Arts 9, 12 and 14, he focused on three main points in his oral submissions. First, he submitted that the differentia in s 377A is necessarily unintelligible because the s 377A Debates evince an express legislative intention for s 377A to be “legally untidy and ambiguous”. Second, he argued that the s 377A Debates suggest that the legislative purpose underlying the retention of s 377A was to discourage gay rights advocacy while accommodating homosexual individuals in society. Assuming that was indeed the relevant legislative purpose, there is no rational relation between that purpose and the differentia in s 377A (namely, male homosexual acts). Third, he contended that the AG’s and the Government’s stance of not enforcing s 377A has generated considerable legal uncertainty. According to Mr Ravi, not only is there ambiguity as to the interplay between s 377A and s 424 of the CPC, there is also uncertainty as to whether public servants and laypersons are legally bound under ss 119 and 176 of the PC respectively to report the commission of a s 377A offence. He submitted that such arbitrariness and uncertainty go towards the very constitutionality of s 377A and are not merely issues of administrative law.

  71. The respondent’s case

  72. [56] Counsel for the AG, Ms Tan, makes five key arguments as regards the constitutionality of s 377A.

  73. [57] First, Ms Tan contends that the text and the context of s 377A, as well as the relevant extraneous material, show that s 377A covers both penetrative and non-penetrative sex acts and is not limited to sexual activity involving male prostitution.

  74. [58] Second, and relatedly, Ms Tan argues that s 377A satisfies the “reasonable classification” test. In this regard, she submits that the legislative purpose of s 377A should be discerned only at the time of its enactment in 1938. She emphasised, especially in her oral submissions, that the legislative purpose of s 377A at that time was to express societal disapproval of male-male sex acts specifically; this legislative purpose could be discerned principally from the text of s 377A, which criminalises only male-male acts of gross indecency. Accordingly, s 377A satisfies the “reasonable classification” test and is consistent with Art 12.

  75. [59] Third, Ms Tan submits that the scientific evidence is inconclusive as to the causes and the alleged immutability of sexual orientation. She further contends that the court is not the proper forum to determine such extra-legal issues of scientific controversy.

  76. [60] Fourth, Ms Tan argues that s 377A does not violate Art 9. According to her, Dr Tan and Mr Ong, the appellants in CA 54 and CA 55 respectively, are inviting this court to read a substantive unenumerated right of sexual liberty, identity or privacy into the Constitution. Article 9, however, only protects procedural rights, and there is no room to read unenumerated rights into the Constitution. Ms Tan also submits that the very premise of Dr Tan’s and Mr Ong’s contention that s 377A is “absurd” or “arbitrary” is erroneous to begin with because s 377A does not criminalise sexual orientation in and of itself. She further stresses that the non-enforcement of s 377A can have no bearing on its constitutionality.

  77. [61] Finally, Ms Tan adopts the Judge’s finding that s 377A does not violate Art 14 because the acts criminalised under s 377A do not concern speech or expression within the meaning of Art 14(1)(a). She also submits that, in any event, Art 14(2)(a), which permits restrictions on the right to freedom of speech and expression in the interest of public morality (among other things), is squarely engaged by s 377A.

  78. The issues to be determined

  79. [62] Based on the parties’ written submissions, the overarching question in these appeals is whether s 377A is inconsistent with Arts 9, 12 and/or 14 and, hence, unconstitutional to the extent of any such inconsistency. To this end, five main issues arise for our consideration:

  80. (a) whether sexual orientation is immutable;

  81. (b) the proper interpretation of s 377A;

  82. (c) whether s 377A violates Art 9;

  83. (d) whether s 377A violates Art 14; and

  84. (e) whether s 377A violates Art 12.

  85. [63] It will be readily apparent that aside from Mr Ravi, counsel (and, for that matter, the Judge) did not place much weight on the s 377A Debates that took place in 2007. However, as we mentioned earlier at [10] above, the constitutionality of s 377A cannot be assessed shorn of the political compromise that was struck in 2007 and upheld in the ensuing years. Given that representations were made by the Government and, subsequently, by AG Wong to the effect that s 377A would not be proactively enforced, it would be entirely artificial to ignore that fact and to analyse the constitutionality of s 377A as if this provision were liable to be enforced in the same manner as any other provision of the PC. Significantly, the representations made by the Government and AG Wong would have a practical impact on the lives of homosexual men, which cannot be disregarded.

  86. [64] Hence, quite apart from whether s 377A is constitutionally valid in the abstract, the more relevant and perhaps more critical question is whether the political compromise on s 377A is legally relevant – and, if so, what its precise legal consequences are. We therefore address this issue first before considering the issues outlined at [62] above.

  87. The general policy of non-enforcement of s 377A

  88. The political package: the political compromise forged by the Government and the representations made by AG Wong

  89. [65] A political compromise on s 377A was struck in 2007, although, as we explain below, it may not have had immediate legal effect. Section 377A was retained in our statute books, but on the express basis that it would not be proactively enforced. The rationale behind this political compromise was explained in the speeches of the Prime Minister and the other Members of Parliament (“MPs”) during the s 377A Debates.

  90. [66] This political compromise may well have informed the prosecutorial policy on s 377A in the years that followed. The PP’s exercise of his prosecutorial discretion is, after all, informed by the public interest, and the Prime Minister’s ministerial statement is the pre-eminent source from which the prevailing public policy may be discerned (see UKM v Attorney-General [2019] 3 SLR 874 (“UKM”) at [141]). However, the aforesaid political compromise took on a new legal significance in 2018, when AG Wong articulated a general policy of not prosecuting s 377A offences. The political compromise forged in 2007 and AG Wong’s representations in 2018 (as mentioned at [8] and [19] above respectively) collectively form the political package surrounding s 377A today. While one might argue that prosecutorial discretion is to be exercised by the AG of the day (such that AG Wong’s representations would not fetter the PP’s prosecutorial discretion), AG Wong’s representations are of legal significance and we elaborate on this below.

  91. [67] In our judgment, it would be contrived and unrealistic to ignore the totality of the political package when assessing the legality of s 377A. This is because the political package has, in effect, significantly altered both the way in which s 377A practically affects the lives of homosexual men and what the provision means in Singapore today. As we made clear to the parties, in particular, to Mr Singh:

  92. [68] The parties (apart from Mr Thuraisingam) agreed at the hearing that the constitutionality of s 377A could not be divorced from the political package. Mr Tan noted that it was “not controversial” that the political package forms part of the relevant legal framework that informs our assessment of whether s 377A is constitutional. Mr Singh likewise acknowledged that “[t]he [c]ourt cannot take a blinkered approach and ignore what happened in 2007”. In the same vein, Ms Tan conceded that we ought to “look at the context in which the constitutionality of [s 377A] is being challenged”. Moreover, in analysing how the political package has affected the constitutionality of s 377A under Art 12, she effectively intimated that the political package could and did have a bearing on whether s 377A is constitutional. Although Mr Thuraisingam questioned the relevance of the political package to the present appeals, there was an air of unreality in the approach that he urged us to adopt, namely, to assess the constitutionality of s 377A in total disregard of the political package. As we have already mentioned, the political package has rendered s 377A radically different in meaning and significance from any other provision of the PC. The precise terms and the legal consequences of the political package thus merit careful consideration.

  93. [69] For the avoidance of doubt, this section of the judgment is not concerned with the purpose behind the enactment of s 377A in 1938, but rather, the equally important purpose behind its retention in 2007. This is because, in the uniquely Singaporean context of the political compromise on s 377A, what is referred to as “Parliament’s intention” where this provision is concerned is informed by the purpose behind not only its enactment, but also its retention. A proper understanding of the political package is therefore critical in ascertaining the true parliamentary intent behind the retention of s 377A.

  94. The political compromise forged by the Government in 2007

  95. [70] On 22 October 2007, Nominated MP Mr Siew Kum Hong presented a parliamentary petition for the repeal of s 377A (“the Petition”). The Petition contended that s 377A was an unconstitutional derogation from the guarantee of equality and the equal protection of the law set out in Art 12(1). The then Leader of the House moved a motion to have the Petition referred to Parliament for consideration at the second reading of the 2007 Penal Code (Amendment) Bill, so that matters in the Petition could be “thoroughly and properly debated, discussed and decided by Parliament” (see Singapore Parliamentary Debates, Official Report (22 October 2007) vol 83 (“the 22 October 2007 Debates”) at col 2122).

  96. [71] By way of background, a comprehensive review of the Penal Code (Cap 224, 1985 Rev Ed) (“the 1985 PC”) had taken place prior to the s 377A Debates. Following extensive public consultations and deliberation amongst the Ministers, the Government decided not to repeal s 377A and “to leave things be” (see the 23 October 2007 Debates at col 2397). Consequently, s 377A was considered in the context of a petition rather than as part of a Bill; the MPs were not asked to vote on the Petition and did not do so. That said, s 377A was debated rigorously and at length during the s 377A Debates, arguably to the point of overshadowing Parliament’s key agenda then, which was the amendment of the 1985 PC.

  97. [72] As the head of the Government, the Prime Minister addressed Parliament during the s 377A Debates. He explained that the Government would maintain the status quo by retaining but not proactively enforcing s 377A. This was because the Government took the view that a delicate balance had to be struck between accepting homosexual individuals as part of our society and respecting the more traditional views of mainstream society (see also UKM at [204]–[205]).

  98. [73] Early in his speech, the Prime Minister put forth the Government’s views on homosexuality, which he regarded as being reflective of the views of most Singaporeans. He stated as follows (see the 23 October 2007 Debates at cols 2397–2398):

  99. [74] At the same time, the Prime Minister took pains to reiterate that the purpose of retaining s 377A was not to discriminate against homosexual men, who are “part of our society” and “our kith and kin” (see the 23 October 2007 Debates at col 2398; see also [2] above). Recognising that “[t]hey, too, must have a place in this society, and they, too, are entitled to their private lives” (see the 23 October 2007 Debates at col 2399), the Prime Minister explained how the Government ensured that homosexual men had a place in our society (see the 23 October 2007 Debates at col 2401):

  100. [75] The Prime Minister reiterated the Government’s stance of not proactively enforcing s 377A later in his speech as follows (see the 23 October 2007 Debates at col 2402):

  101. [76] The retention of s 377A while not proactively enforcing it was aimed at striking a “balance” between “uphold[ing] a stable society with traditional, heterosexual family values” and allowing “space for homosexuals to live their lives and contribute to the society” (see the 23 October 2007 Debates at cols 2399–2340). The Prime Minister cautioned that repealing s 377A might send “the wrong signal that our stance has changed, and the rules have shifted” (see the 23 October 2007 Debates at col 2402). Forcing the issue could foreclose any possibility of reaching “an agreement within Singapore society”, because “[p]eople who are presently willing to live and let live will get polarised and no views will change” (see the 23 October 2007 Debates at col 2405). The Prime Minister concluded his speech by stating: “we have … been right to adapt, to accommodate homosexuals in our society, but not to allow or encourage activists to champion gay rights as they do in the West” (see the 23 October 2007 Debates at col 2407).

  102. [77] Many of these points about the political compromise on s 377A were reiterated in the speeches of other MPs, including that of the then Senior Minister of State for Home Affairs, Assoc Prof Ho Peng Kee, who moved the 2007 Penal Code (Amendment) Bill to its second reading (see the 22 October 2007 Debates at cols 2175–2202).

  103. [78] Reading the s 377A Debates as a whole, it is apparent to us that the debates did not concern the purpose of enacting s 377A in 1938, the scope of s 377A at the time of its enactment, or its differentia. Nor was the Government’s position informed by any of those matters. Rather, it is abundantly clear that the Government was focused on reaching a socio-political compromise that would balance various competing interests and accommodate differing perspectives on homosexuality. The political compromise that was eventually put forth by the Government and endorsed by Parliament (as summarised at [65] above) was a conscious and considered decision made after intense deliberation (see the 23 October 2007 Debates at cols 2397 and 2401–2405).

  104. [79] In deciding to “leave things be” (see the 23 October 2007 Debates at col 2397), it did not escape the Government’s attention that doing so would generate “legal untidiness and ambiguity” (see the 23 October 2007 Debates at col 2405). The Prime Minister addressed this directly by explaining that maintaining the status quo, while unsatisfactory, was preferable to risking societal division over s 377A. In his words, “[i]t is better to accept the legal untidiness and ambiguity. It works, do not disturb it” (see likewise the 23 October 2007 Debates at col 2405).

  105. [80] We have laid out the Prime Minister’s speech in some detail because it is legally significant in two respects. First, it is an express articulation of the public policy and the public interest in respect of s 377A – namely, the need to balance conflicting views on homosexuality in Singapore (see [76] and [78] above). As was held in UKM (at [137]), the three main criteria for assessing whether any material bears out an alleged public policy are authority, clarity and relevance. In our view, the Prime Minister’s speech fulfils all three criteria. The public policy espoused in the Prime Minister’s speech is relevant because it pertains specifically to s 377A. It is also clear and emanates from a constitutionally authoritative source – the Prime Minister’s parliamentary speech, delivered in his official capacity as the head of the Government (see UKM at [138], [141] and [142]).

  106. [81] Second, the Prime Minister’s speech set out the prevailing position in terms that homosexual men were not being and would not be harassed because s 377A would not be proactively enforced (see [74] above). We note, however, that the Prime Minister did not specify what he meant in saying that s 377A would not be “proactively” enforced. This is a point that we return to later at [99] below.

  107. AG Wong’s representations in 2018

  108. [82] While the Prime Minister’s speech during the s 377A Debates is undoubtedly important, it must be borne in mind that ministerial statements about the general non-enforcement of s 377A, even those by the Prime Minister himself, do not have the force of law and do not bind the PP, who exercises his prosecutorial discretion independently (see Tan Eng Hong v Attorney-General [2012] 4 SLR 476 (“Tan Eng Hong (Standing)”) at [181]). In practice, however, we expect that the PP of the day, in exercising his prosecutorial discretion when dealing with s 377A offences, would have taken into account the Prime Minister’s speech, which is an authoritative expression of the public policy and public interest on this matter.

  109. [83] A major development in this narrative, which significantly affected the political package, was AG Wong’s issuance of the 2018 AGC Press Release and the 2018 Straits Times article. Significantly, they post-date this court’s decision in Lim Meng Suang (CA) and are being considered by this court for the first time.

  110. [84] On 2 October 2018, AG Wong issued the 2018 AGC Press Release. We reproduce its most salient portions below:

  111. [85] AG Wong emphasised that the PP exercises his independent and constitutionally protected discretion when deciding whether to prosecute a case involving an offence under s 377A. He concluded by providing the following guideline on how the PP would exercise his prosecutorial discretion in this regard:

  112. [86] The 2018 AGC Press Release was swiftly followed by the 2018 Straits Times article four days later on 6 October 2018. There, AG Wong expressed the Government’s and the PP’s “respective longstanding approaches to Section 377A cases” [emphasis added] in the following terms:

  113. (a) First, “the Government’s position that the police will not proactively enforce Section 377A with respect to private acts had been made public since at least 2006”.

  114. (b) In addition, the PP had “consistently taken the position that, absent other factors, prosecution under Section 377A would not be in the public interest where the conduct was between two consenting adults in a private place” [emphasis added]. AG Wong reiterated that this prosecutorial policy had existed “when Mr [V K] Rajah [SC] was the PP and remains so today”. Before us, Ms Tan confirmed that the PP still maintains the general position of not proactively enforcing s 377A and that this position is broadly in line with what was set out in Parliament in 2007.

  115. [87] The 2018 Straits Times article also referred to a 2008 case which AG Wong had mentioned in the 2018 AGC Press Release, and which involved an offender who had been charged under s 377A for performing oral sex on a minor in a public place. AG Wong highlighted that that case “illustrate[d] the Government’s and the [PP’s] respective longstanding approaches to Section 377A cases” and showed that these approaches were aligned.

  116. [88] In our judgment, AG Wong’s statements are legally significant in three respects. First, they contain guidelines on the exercise of prosecutorial discretion in relation to s 377A offences, which is a matter within the PP’s purview. These guidelines, in substance, constitute representations that s 377A will generally not be enforced in cases of sexual conduct between consenting adult men in private (that is to say, acts falling within the Subset as defined at [19] above).

  117. [89] Second, these guidelines and the policy stance they embody are broadly aligned with the public policy and public interest expressed by the Prime Minister during the s 377A Debates. AG Wong was, however, specifically concerned with the enforcement of s 377A by way of prosecution. In that sense, he appears to have been addressing an issue distinct from, although related to, enforcement in the sense of police investigations (see [74] above). This much is evident from para 6 of the 2018 AGC Press Release, where AG Wong stated that “[t]he Police’s exercise of its enforcement or investigative powers should … not be conflated or confused with the PP’s exercise of discretion to commence prosecution”.

  118. [90] Third, AG Wong stated that the PP’s position was consistent with the Government’s stance that s 377A would not be proactively enforced. Paragraph 5 of the 2018 AGC Press Release explicitly states that the fundamental principles pertaining to the PP’s exercise of his prosecutorial discretion in relation to s 377A offences “have been repeatedly affirmed by past and present Attorneys-General and have also been recognised and respected by the Government and Parliament”. This seeming alignment of positions was later reiterated in the 2018 Straits Times article. We add that the PP’s position, as enunciated by AG Wong, is aligned with not only that of the Government but also that of Parliament, given that Parliament chose to retain s 377A in 2007.

  119. A summary of the political reality surrounding s 377A

  120. [91] To summarise, it is evident from the political backdrop to the retention of s 377A that the constitutionality of the provision cannot be assessed in a vacuum, a point which both Mr Singh (as well as his co-counsel, Mr Tan) and Ms Tan conceded. In our judgment, the political reality surrounding s 377A can be encapsulated in three points.

  121. [92] First, although s 377A was retained in our statute books, this was on the terms that it would not be proactively enforced. The Government’s evident unwillingness to repeal s 377A signals its assessment that society has yet to adequately integrate the opposing views of mainstream conservatives and the homosexual community, as well as its awareness that our multi-racial, multi-lingual and multi-religious community remains vulnerable along such fault lines. The Government was especially cognisant that forcing the issue would polarise those who are “presently willing to live and let live” (see the 23 October 2007 Debates at col 2405; see also [76] above).

  122. [93] Second, the purpose behind the retention of s 377A in 2007 says nothing about the reason(s) for its enactment in 1938. Instead, the retention of s 377A was directed at addressing a deeply divisive socio-political issue in a pragmatic way. The decision not to repeal s 377A was a legislative one that was informed not by the purpose behind the enactment of the provision some seven decades earlier, but by the Government’s objective of striking an optimal compromise between competing interests in our society and accommodating differing perspectives on homosexuality (see [78] above).

  123. [94] Third, and flowing from our previous point, the purpose of the political compromise on s 377A that was reached in 2007 and elaborated on by AG Wong in 2018 was to strike a careful balance between the opposing interests of various groups. The retention of s 377A served to accommodate the views of the more conservative segments of society, while the caveat that s 377A would not be proactively enforced served to accommodate the interests of homosexual individuals and to allow them to live their lives in as full a space as is presently possible (see [76] above). The Government was clearly seeking to calibrate the pace at which the complex issue of whether s 377A should be retained or repealed was resolved. In this regard, a measured pace with a degree of accommodation was seen as the optimal course for Singapore.

  124. [95] Returning to the point we made at [67] above, we reiterate that it would be artificial and unrealistic to ignore the profound implications of these considered legislative and executive actions when assessing the legality of s 377A. It is also common ground between most of the parties that the representations made by AG Wong in 2018 cannot be said to be devoid of any legal force or effect. Ms Tan acknowledged at various points during the hearing that if the PP were to institute a prosecution under s 377A today, the affected individual may well choose to bring an administrative law challenge premised on something akin to a substantive legitimate expectation. Similarly, Mr Singh did not suggest that AG Wong’s representations were of no legal effect; he in fact implicitly conceded that the need to give “practical effect and permanence” to these representations was of utmost relevance. Instead, his real contention was that these representations were insufficient to insulate homosexual men from the threat of prosecution.

  125. The uncertainties arising from the political package

  126. [96] Although a key tenet of the political package was that s 377A would not be “proactively” enforced, there remains some uncertainty as to whether homosexual men may be liable to prosecution under s 377A, and if so, when they may be so liable. In broad terms, the contours of the political package give rise to three important issues.

  127. [97] First, any representations operate in the present and do not bind future Governments or AGs, or even the current Government and AG Wong. The Executive’s discretion to determine policy remains unfettered, and it can change its policy in respect of the enforcement of s 377A. Similarly, AG Wong or a future AG may choose to exercise the prosecutorial discretion in relation to s 377A offences differently, given that Art 35(8) of the Constitution vests the AG with “power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence” [emphasis added]. Indeed, it has been made clear by the AG himself that “no binding assurance could be given that no future prosecutions would ever be brought under s 377A” [emphasis in original] (see Tan Eng Hong (Standing) at [181]–[182]). This gives rise to the possibility that homosexual men may face the threat of prosecution under s 377A in the future.

  128. [98] This point was advanced in Mr Choong’s affidavit and raised by both Mr Singh and Mr Thuraisingam in their oral submissions. It was also accepted by Ms Tan, whose response was simply that any such retraction of the AG’s policy of not prosecuting s 377A offences generally might be grounds for a fresh constitutional challenge. If AG Wong or a future AG were to resile from the prosecutorial policy on s 377A that is currently in place to give effect to the political compromise that was forged in 2007, or if the Government were to change the stance encapsulated in that political compromise, the space presently accorded to homosexual men to live freely without interference may be eroded. In other words, the representations made by the Government and AG Wong as to the general non-enforcement of s 377A are only of practical effect until their maker chooses not to abide by them, a precarity which has been likened to “[h]aving a gun put to your head and not pulling the trigger” (see the 23 October 2007 Debates at col 2405).

  129. [99] Second, there is some uncertainty as to both the scope and the source of any legal protection from prosecution under s 377A. During the s 377A Debates, the Prime Minister made clear that the Government does not “proactively enforce” s 377A. This would suggest to a layperson that s 377A will generally not be enforced. However, while the AG’s general stance of non-enforcement (in the sense of non-prosecution) broadly dovetails with that of the Government (see above at [89]), there might be some gaps between their respective positions. This is unsurprising: the Prime Minister was making a policy statement in Parliament on behalf of the Government, whereas AG Wong was effectively providing the general public with guidelines on the exercise of the prosecutorial discretion in relation to s 377A offences. AG Wong was therefore rather more specific in stating that only a certain category of acts caught by s 377A, namely, sexual conduct between consenting adult men in private, would generally not be prosecuted under that provision. The Prime Minister’s speech understandably did not go into such detail.

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